N504(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KEVIN MASIVE

V

IAMBAKEY OKUK AND JOHHANNES KENDEROP

Waigani
Pratt J

9 May 1985

PRACTICE AND PROCEDURE - Originating process - Originating summons - To be accompanied by affidavit of facts - Not to be used where dispute of facts - National Court Rules, O 4.

PRACTICE AND PROCEDURE - Application for review - Judicial review of actions of public officer - Appropriate procedure - National Court Rules, O 16.

PARLIAMENT - Elections - Candidates - Challenge to nomination - Challenge before polling - Appropriate procedure - Application for review - National Court Rules, O 4, O 16 - Organic Law on National Elections, s 206 - Constitution, s 50.

Held

(1) An application to the court by way of originating summons under the National Court Rules, O 4, should be accompanied by an affidavit of facts; the procedure should only be used where the facts are not in dispute (leaving aside custody cases which are under a separate category).

(2) (Obiter): Where a party wishes to challenge or affect the actions of a public officer in the course of his duties the appropriate method is the procedure pursuant to the National Court Rules, O 16, for a declaration and injunction.

(3) Accordingly, that where a party desired to challenge the nomination of a candidate for election prior to the commencement of polling on the basis of residency, by means of an originating summons under the National Court Rules, O 4, without supporting affidavits, the summons should be dismissed, taking into account the insufficiency of time before the commencement of polling to remedy any omissions by redirections and adjournment and the specific direction in the Organic Law on National Elections, s 206, that "the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise".

Cases Cited

Cocks v Thanet District Council [1983] AC 286; [1982] 3 WLR 1121; 3 All ER 1135.
O’Reilly v Mackman [1983] 2 AC 237; 3 WLR 1096; [1982] 3 All ER 1124.

Summons

These were proceedings commenced by way of originating summons pursuant to the National Court Rules, O 4, for a declaration concerning the residency of a nominated candidate for election and an injunction restraining electoral officers from placing the nominated candidate’s name on the electoral papers.

Counsel

G Lay, for the plaintiff.
D J Colquhoun-Kerr, for the first defendant.
W A J Tadabe, for the second defendant.

9 May 1985

PRATT J: I have before me an originating summons issued under the National Court Rules, O 4, and almost nothing else. The summons seeks a declaration concerning the first defendant’s residence in the Unggai-Bena electorate and an injunction restraining the second defendant and or his agents for the Unggai-Bena electorate from placing the first defendant’s name on the ballot papers or issuing or delivering papers on which the first defendant’s name appears. The summons has been served on both parties and a notice of intention to defend by the first defendant was filed on 19 April 1985. There were no affidavits filed in support of the summons nor have any such affidavits been filed since. The plaintiff intends to rely on verbal evidence which will be the subject of cross-examination, I am told, and evidence in reply. I repeat my comments to the bar table this morning — in all cases which proceed by way of originating summons I would expect affidavit evidence to be placed before the court as a starting point at least. In addition, I believe it is essential for the court to insist that originating summons be restricted basically to matters where the facts are not in dispute (leaving aside custody cases which are under a separate category). From what I have been told disputation of facts will figure quite prominently in the present matter. I can believe that would be so. To this end I emphasise that under the National Court Rules, O 4, r 2(b), a most important factor in deciding on the appropriateness or otherwise of proceedings by way of originating summons is "there is unlikely to be a substantial dispute of fact".

Nearly a month has passed since the filing of the originating summons. No affidavit material has been filed or served. The court is asked to continue with or adjourn over a case where the essential affidavit material is just not there. For this reason alone I would be disposed to dismiss the application, especially as the declaration and injunction relate to events which must come to pass no later than next Saturday, 11 May (a fact obtained by consent admissions from the bar table).

As has been pointed out it is possible for the court to convert an originating summons into what amounts to a writ with its concomitant pleadings (O 4, rr 31 and 35). I am not absolutely convinced a writ is appropriate for such a case as the present. Most of the delay in the matter before me has resulted from the necessity of referring a question of interpretation to the Supreme Court. The decision from that court was handed down last Tuesday1 (7 May 1985) giving the National Court jurisdiction to entertain a challenge to qualifications of a candidate before the polling commences. As yet we do not have the benefit of the Supreme Court reasons and naturally anything I say now will be subject to what is said by the Supreme Court. In the interim however I tend to the view that the procedure by way of O 16 for a declaration and injunction is the more appropriate method in a case such as the present where a party wishes to challenge or affect the actions of a public officer in the course of his duties. In short, the present application under O 4 is misconceived and should have been brought under O 16, r 2, by way of judicial review. I adopt a statement by Lord Diplock in O’Reilly v Mackman [1982] 3 WLR 1096, referred to me by Mr Colquhoun-Kerr, (at 1110, par c) where his Lordship says:

"Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of O 53 for the protection of such authorities."

I do not suggest for one moment in this present case that there has been any attempt to abuse the process of the court or evade any requirements that are set out in O 16. It is indeed a very new jurisdiction for us, in fact until last Tuesday no one realised that it existed at all and it is therefore understandable that there may well have been some confusion which I am not necessarily, as it turns out in the long run, clearing up as fully as I would like as to the appropriate method to obtain a decision from the National Court where an application is made concerning the qualifications of a candidate before the election process has been completed.

I appreciate Mr Lay’s distinction based on the questioning of an official’s decision in the authority just quoted and the follow-up decision of Cocks v Thanet District Council [1982] 3 WLR 1121 at 1128 (par F) but in my view the gravamen of their Lordships’ decisions revolved around the public character of the function being performed and the consequences of granting or rejecting the relief sought from the public point of view.

It was suggested that the plaintiffs case may still remain on foot by treating the originating summons under O 4 as if it were an originating summons under O 16. There may be some merit in such a course in ordinary circumstances and I am not unmindful of the fact that in this present case the service on the Secretary for Justice mentioned in O 16 has in effect been achieved in this case, for there has been service on the electoral officer, which has resulted in the Secretary for Justice as Principal Legal Adviser seeking leave to appear in this very case. But the point is, that the present circumstances are not really ordinary circumstances. The application requesting an injunction restraining certain action in respect of a National by-election to commence polling not forty-eight hours away from the time the application is made is not what one I think could regard as an ordinary circumstance. The question of whether or not I should exercise my discretion on the balance of convenience and because there is a prima facie case is not a matter which I am called upon to consider at this early stage. But it is nonetheless clear that the first defendant requests an adjournment of the proceedings to obtain witnesses and even to seek a change of venue. The first defendant could not have been given prescribed notice of this hearing and does not agree to any abridgement of time. It is obvious that the hearing would take some time once it did get off the ground. It is equally obvious that none of this could be finalised before the commencement of the polling.

The significance of what I had been saying will become apparent immediately one reads the Organic Law on National Elections, s 206. That section of course says:

"The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise."

Whatever else may be said to constitute a dispute of an election, to challenge the qualifications of nominees after the whole election process has been completed must fall within s 206. If I were to adjourn this application whether as an originating summons simpliciter, or one converted to a writ, or as a summons under O 16, I would be faced with the eventual problem of having to deal with the dispute by a method which had become contrary to the law. I do not see how I could continue with the application in the face of a specific direction by the legislature that I can proceed only by way of petition under the Organic Law on National Elections after the election has been held. The plaintiff of course comes to this Court seeking to exercise a constitutional right which I believe may be founded in the Constitution, s 50. I do not believe I have the right to grant or deny the exercise of the constitutional right by use of a discretion. If the citizen has a right, then it cannot be that he can exercise it some of the time and not at others. Yet he must exercise his right in conjunction with the exercise of rights by others. If the only just course is to defer argument and decision on the matter for a time in order to allow all parties to exercise their rights, then the decision to adjourn or defer is a necessary corollary of the joint exercise of rights by each of the parties before the court. In the present case I believe the proper course is to defer. I do so by dismissing the present application on the basis that it is not supported by affidavit material, it is an inappropriate form of application, and it is now too late in the day to remedy any omissions by redirections and adjournments. In so doing I do not believe I have in any way prejudiced the plaintiffs legal standing before the court under the Organic Law on National Elections, s 206, if he wishes to continue with his claim after the elections have been completed. Because of the complications created by s 206 it has not become necessary for me to decide in the ultimate between the process by writ of summons or an application under O 16, though it is obvious that I have a decided preference for the latter. It is also equally obvious that I do not agree with an application under O 4.

Application dismissed

_____________________________________

Lawyer for the plaintiff: Young & Williams.
Lawyer for the first defendant: John K Gawi.
Lawyer for the second defendant: State Solicitor.